Mississippi Cent. R. v. Pace

68 So. 926 | Miss. | 1915

Cook, J.,

delivered the opinion of the court.

Plaintiff below, appellee here, recovered judgment for injuries received because of appellant’s violation of section 4043, Code 1906. This section provides that:

“The company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater speed than six miles an hour through any city, town or village.”

The evidence for plaintiff shows that plaintiff was invited by the persons in charge of one of defendant’s locomotives to ride on the locomotive; that, at the request of the fireman, he fired the engine, and, after doing so, he sat down in the cab, whereupon the locomotive, while running at a speed in excess of six miles per hour, came in violent contact with a string of cars, and by reason of the shock caused by the collision of the locomotive with the string of cars he was thrown out of the cab and injured.

Taking plaintiff’s evidence as true, the jury was warranted in finding that the proximate cause of his injury was the unlawful speed of the locomotive. The hurt was inflicted while the locomotive was running within the corporate limits of the city of Hattiesburg. It was claimed below, and is claimed here, that the six-mile statute does not operate in the circumstances of this case. It appears that the locomotive was switching cars in what is termed by counsel the “private yard” of the railroad company, and that, while it is admitted that the locomotive was running within the city limits, it is contended, and the evidence tends to prove, that it was not running “through” the city in the literal sense. In other words, it is the position of appellant that the statute does not come into play upon locomotive and cars, unless they are at the time running “through” or from end to end of the city.

In New Orleans Railroad Co. v. Toulme, 59 Miss. 288, and in Railroad Company v. McGowan, 62 Miss. 697, 52 Am. Rep. 205, this court treated the word “through,” as used in the statute, as a synonym of “within” and “in,” and, while the court in neither of these cases had in mind the point raised here, we think nevertheless a correct interpretation was given to the language of the statute. Besides, taking section 4043 as a whole, it is manifest that the narrow construction insisted upon by appellant cannot be maintained. The last clause of the section expressly confers upon the Railroad Commission the “power to fix and prescribe limits in cities, towns and villages in which railroad companies may run locomotives and cars'by steam at a greater rate than six miles per hour.” The italicized words in the quotation from the statute, “in which,” express the legislative intent to construe the word “through” as meaning the same thing as “in” or “within.”

The power conferred upon the Railroad Commission to prescribe limits wherein railroad companies may exceed the speed limit fixed in the fore part of the statute clearly indicates that the six-mile statute would be in force in every part of the city except the prescribed limits.

We think, in the matter of instructions, defendant received more than its just share, and instruction. No. 5 given for plaintiff brought the law more nearly into proper proportion.

That plaintiff was a trespasser or a licensee did not in any affect his right to recover, if the locomotive was running more than six miles per hour, and the excessive speed was the proximate cause of his injury. Railroad Company v. Carter, 77 Miss. 511, 27 So. 993; Howell v. Railroad, 75 Miss. 249, 21 So. 746, 36 L. R. A. 545; Railroad Company v. Metcalf, 84 Miss. 242, 36 So. 259.

After considering all of' appellant’s assignments of error, we are unable to find anything in the record which could justify a reversal.

Affirmed.